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Family Law Basics for Unmarried
Parents
Legal parentage, decision-making and caretaking
responsibilities, and child support for your minor child
January 2016
Our goals today
Legal information only
We cannot give you legal advice specific to your case
Every case is different
We will be discussing family law for unmarried parents;
we will not discuss divorce
We will be discussing Illinois law only
Topics
Legal parentage
Decision-making and care of your minor child
Grandparent visitation
Child Support
Tips
New law changes!
This presentation is based on the law as of 2016
Many of Illinois’ laws about parentage, child support,
decision-making and caretaking rights for minor
children changed on January 1, 2016
Some of the terms used in the new law are different
Do the new laws apply to my case?
The new laws apply to:
Cases started on or after January 1, 2016
Parts of cases that started before 2016 but were not
finished by 2016
Cases that were finished before 2016, if someone later goes
back to court to change or enforce a court order
What is parentage?
Parentage is the legal relationship between a parent and a
child
Paternity is the legal relationship between a father and his child
The birth mother’s parentage is usually established by her
giving birth
The other parent’s parentage must be legally established
Why does legal parentage matter?
If a person’s legal parentage is not established, that person
does not have any legal rights or obligations to the child
That person is not entitled to make decisions for his or
her child or to spend time with the child, and is not
required to pay child support
How is parentage established in IL?
1. The person was married to the child’s biological mother at the time of birth, conception, or at any point during the pregnancy;
2. The parents marry after the birth of the child, and the person is listed on the birth certificate with his or her written consent;
3. Court order
For fathers only, paternity can also be established by:
4. Voluntary Acknowledgment of Paternity (VAP) form, or
5. Department of Healthcare and Family Services (HFS) or public aid order
What is a Voluntary Acknowledgment of
Paternity (VAP)?
A VAP is a form signed by both parents acknowledging
that a man is the father of the child
Just one method of legally establishing paternity
Often signed at the hospital, but doesn’t have to be
When does the VAP take effect?
A VAP can be signed before the child is born
After signing, the form gets filed with the IL Department
of Public Health and HFS
It takes effect when the child is born OR when it gets
filed with HFS, whichever is later
What if the mother is married to someone
else?
The mother and the biological father can sign the VAP
even if the mother is married to someone else at the
time of the child’s birth or during the pregnancy
BUT the mother and her spouse must also sign a “denial
of parentage” form
The VAP isn’t effective unless the biological father signs
the VAP and the mother’s spouse signs the denial of
parentage form
What if the father listed on the VAP isn’t
really the father?
The VAP is a binding legal document with serious
consequences!
Don’t sign the VAP if you are not sure – wait for DNA
testing!
What if I change my mind?
At most, you have only 60 days from the effective date of
the VAP to change your mind and rescind it
The deadline might be shorter if a child support case is started
before the 60 days are up
Either parent can rescind the VAP within the 60 day time
period
To rescind, sign a rescission form and file it with HFS by
the deadline
What if I miss the 60 day deadline to
rescind the VAP?
After the 60 day deadline, paternity can only be changed
by court order and only in very limited circumstances
Fact that the person listed on the VAP is not the biological
father is usually not enough
A VAP can usually only be challenged within two years
after it becomes effective
A person who was a minor when he or she signed the VAP
may have two years from the date he or she turns 18 to go to
court to challenge the VAP
What if the other parent’s name is on the birth
certificate? Is parentage legally established?
Yes, if the child was born in Illinois after August 9, 1996
Beginning August 9, 1996, only the legal parents can be listed on
the birth certificate in Illinois
Establishing parentage in court
There are time limits for filing a parentage case
These vary depending on numerous factors
Court can order DNA testing
The party who asks for DNA testing usually pays for it
The court may split the costs between the parties
If your court fees have been waived, you can ask for the county
to pay the cost of the test
Do I have to get a court parentage order?
A court order is only one way to establish parentage
If a parent’s name is on the birth certificate or if a father
signed the VAP, this means parentage has been officially
established and you do not need a court order to
establish parentage
What if I am served with parentage court
papers?
If you are the alleged parent (usually dad):
If you do not respond to the court papers, the court can
decide you are the parent without a DNA test and without
your participation
The court might order you to pay child support
If you are already the legal parent of the child (usually
mom):
The court can make a parentage decision and enter orders
about decision-making, parenting time, and child support
without your participation
What is allocation of parental responsibility?
The 2016 laws replace the terms “custody” and “visitation” with the new term “allocation of parental responsibilities”
Allocation of parental responsibilities includes:
Significant decision-making responsibility: who makes decisions for the child and how decisions are made
Parenting time: the time that each parent spends with the child
A parent who wants the right to make decisions for a child or to spend time with a child will file a “Petition for Allocation of Parental Responsibility”
What about custody and visitation?
The word “custody” is still used in some parts of the law
For example, the parent who has more parenting time is considered
to have custody for school enrollment purposes
The word “visitation” now refers to the time a non-parent,
such as a grandparent, spends with the child
What is significant decision-making
responsibility?
Significant decision-making responsibility refers to
decisions for your child in the areas of:
Education
Healthcare
Religion (if there is a history of religious upbringing for the
child)
Extracurricular activities
It does not include most “everyday” decisions, like what a
child eats or what time he goes to bed
Who makes decisions for the child?
The court can give significant decision-making
responsibility to both or either parent in each area
For example, the court might say the parents have to work
together to make education decision for the child, but that
only the mother can make medical decisions
Everyday decisions are made by whichever parent is
caring for the child at that time
What is parenting time?
Parenting time refers to the time the child spends with
both parents
Usually, but not always, the child lives primarily with one
parent and sees the other parent regularly
Parenting time schedules
In most cases, the court will order a specific schedule for
when the child will be with each parent, as well as
transportation arrangements
A set schedule can help avoid problems later
There is no automatic or preferred schedule
Amount of parenting time and schedule varies by case
Parenting time does not have to be overnight
What is a parenting plan?
Each parent must file a proposed parenting plan in every allocation of parental responsibilities case within 120 days of filing the case or receiving the court papers
If the parents reach an agreement they can file a joint parenting plan
The plan has to include a lot of specific information, including:
How much time the child will spend with each parent (parenting time schedule)
Who will make decisions for the child in the areas of education, healthcare, religion, and extracurricular activities and how these decisions will be made
How the parents will handle disputes
Look at a sample plan to make sure you cover everything!
Do I need a court order allocating parental
responsibilities?
You are not required to have a court order
But without a court order:
It may not be clear who has the right to make decisions for the
child or to care for the child
It may be hard to get the court or the police to help you if you
have a dispute
How does a judge decide how to allocate
parental responsibilities?
If the parents agree on allocation of parental
responsibilities, the court will usually approve their
agreement
If the parents don’t agree, the court makes a decision
based on the “best interests” of the child
No presumption in favor of mom
What are the best interest factors?
Best interests includes things like:
The wishes of the parents
The wishes of the child (if the child is older)
The adjustment of the child to his home and community
The willingness of each parent to allow a close relationship with the other parent
Any history of abuse
The mental and physical health of all individuals involved
For decision-making, the history of decision-making and ability of the parents to cooperate to make decisions
For parenting time, the child’s relationship with each parent and the recent history of how much time each parent spends caring for the child
Can a parent who doesn’t have decision-making
responsibility still get parenting time?
Yes!
If a parent asks for parenting time in court, the judge will order parenting time unless the judge finds that parenting time should be restricted or supervised
Some judges may require the parent asking for parenting time to prove that it is in the child’s best interests
The relationship between a parent and child is the most important best interest factor
Ask for a parenting time order sooner rather than later if there are problems
Can parenting time be restricted?
A judge will restrict parenting time if the child’s health would be seriously endangered or if the parent’s conduct seriously endangered the child
Restrictions can include: Supervised parenting time
Prohibition against using alcohol or drugs during or before parenting time
Restrictions on who can be present during parenting time
Other restrictions to protect the child
Restricted parenting time is usually disfavored and temporary “He’s irresponsible” isn’t a good enough reason for restricted
parenting time
What about supervised parenting time?
Supervised parenting time is a type of restricted parenting
time
Arrangements can be very difficult
Must have appropriate supervisor, location, etc.
Family Visitation Center of Lake County
Think about other options such as short visits, safe place
for exchange, public place for visit, etc.
Which parent has responsibility if there
is no court order? If there are no court orders of any kind and the child lives
with the mother, the law presumes the mom has full parental responsibilities for the child
If there is a parentage order:
And it orders one parent to pay child support or awards parenting time, this is considered an order giving full parental responsibilities to the other parent
If there is no child support or parenting time order, the law presumes mom has full parental responsibilities for the child, unless the child has lived with the other parent for at least 6 months
Police usually won’t remove a child from the current situation without an allocation of parental responsibilities order
Can I change an allocation order?
If the most recent custody, visitation, or allocation order
is more than two years old:
You must show there has been change in circumstances since
the last order and that modification is in the best interests of
the children
Some changes can be made without showing a change in
circumstances, like minor changes or changes that reflect the
actual care arrangement
Can I change an order that is less than two
years old?
If the most recent custody, visitation, or allocation order
is less than two years old:
You must first show that the child’s present environment may
seriously endanger his physical, mental, moral, or emotional
health
If a parent has engaged in conduct that seriously
endangered the child’s health or development, the court
can enter orders to protect the child, including orders
restricting parenting time or decision making
What if I want to move?
If there are no court orders, the parent who is presumed
to have all of the parental responsibilities can move with
the child without permission from the court or the other
parent
BUT, keep in mind a move might encourage the other
parent to go to court to ask for an allocation order
It is possible that a court may require the parent who moved
to return if it is in the best interests of the child
What if there is a court order?
If there is a court order about the child, then it depends how far you are moving
If the parent with the majority of parenting time is moving: More than 25 miles away from home if the original home is in
Cook or the collar counties, or if the move is out of state; OR
More than 50 miles away from home within Illinois if the original home is not in Cook or the collar counties
then the move is called a relocation, and the parent must go through a special process to get permission from the other parent or the court
This is a big change from the old law, which allowed moves within the state with no restrictions but required court permission for all out of state moves
Can grandparents get visitation?
Grandparents can get court ordered visitation in some limited
circumstances, including when:
One of the parents has unreasonably denied visitation; AND
The parents of the child are not married and do not live together
A grandparent who is related through the child’s father can
only get visitation if legal paternity has been established
The grandparent must prove that the parent's decisions about
visitation are harmful to the child's mental, physical, or
emotional health
What if I want to change a grandparent
visitation order?
If you are the parent:
You may petition to modify at any time based on changed circumstances when necessary to promote the child’s best interests
If you are the grandparent:
And the most recent visitation order is more than two years old, you must show there has been a change in circumstances since the last order and modification is in the best interests of the children
If the most recent parenting time order is less than two years old, you must show that the child’s present environment may seriously endanger his physical, mental, moral, or emotional health
Child support basics
Legal parentage must be established before child support
is ordered
Either parent can be ordered to pay child support
Generally, the parent who does not have the majority of
parenting time is ordered to pay support to the parent who
has the majority of parenting time.
Minor parents can be ordered to pay child support
A child support obligation usually ends when the child
turns 18 or graduates from high school, whichever is later
How do I get child support in Illinois?
File a Petition for Child Support yourself
If there is an existing parentage or allocation of parental
responsibilities case, file the Petition for Child Support in the
same case
The court will decide parentage before ordering child support
Or, you can ask Child Support Enforcement Services
(CSE) to help you get child support
What is CSE? How can it help me?
CSE is a state program that can help you:
Get an order for parentage and child support
Modify or enforce a child support order
Work with similar agencies in other states to get an order if the other parent doesn’t have enough connections to Illinois to get an order here
CSE can help any parent
If you get certain public benefits, you may be required to work with CSE
CSE will not represent you to get an allocation of parental responsibilities order
How is child support calculated?
IL courts usually follow these “statutory guidelines:”
The court can order more or less in rare circumstances
NUMBER OF CHILDREN Percent of Supporting
Parent’s Net Income
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%
What is net income?
Income is all income from all sources
Net income is gross income minus the following:
Federal income tax
State income tax
FICA
Mandatory retirement contributions
Union dues
Insurance premiums
Student loan payments
Prior obligations of support or maintenance/alimony actually paid under a court order
Additional support
Court can order additional payments for:
Healthcare costs not covered by insurance
Childcare costs that allow a parent to work or attend school
Education costs
Extracurricular activities
What if the supporting parent is
unemployed?
The court can order the supporting parent to perform a
job search
The court can order a parent to pay support even if he
has no income
Usually a very small amount like $10/week
What if the supporting parent gets SSD or
SSI?
The court can order a parent to pay child support from
Social Security Disability (SSD) benefits
If the child receives SSD dependent benefits on the Social
Security account of the supporting parent, the dependent
benefit usually counts as the child support payment
The court cannot order a parent to pay child support
from Supplemental Security Income (SSI) benefits
What if the child or the parent who gets
support gets SSI?
If the child receives SSI benefits, child support counts as
income to the child for the SSI program
The parent who receives support must report the child
support income to Social Security on the child’s behalf
The child’s SSI payment may be reduced
If the parent who gets child support gets SS1, child
support does not count as income to the parent
How is a child support order enforced?
You can enforce an order on your own, or ask CSE for help
Notice to Withhold Income
Requires employer to withhold income directly from parent’s paycheck
Employer can be fined for failure to follow the Notice to Withhold
File a Petition for Rule to Show Cause in your child support case
Requires the supporting parent to come to court to explain why he or she is not paying child support
If he or she doesn’t have a good reason, the judge can hold the parent in contempt
What if child support isn’t paid?
Interest accrues on unpaid child support at a rate of 9%
State or a judge can:
Withhold money from unemployment insurance benefits
Intercept your federal and state income tax refunds and lottery winnings
Place liens on your real property
Freeze your bank accounts
Suspend your driver’s license
Deny your passport application
Send you to jail
Some of these can only be done if CSE is enforcing the order
I lost my job and can’t afford to pay support.
What should I do?
File a Petition to Modify Support right away
The judge can only adjust your child support as far back
as the date you file the Petition
How do I change a child support order?
Child support is not automatically recalculated because of
job loss, change in pay, etc.
File a Petition to Modify Child Support in the same court
case in which the original child support order was
entered
Must show there has been a substantial change in
circumstances
Child support and parenting time
No connection between child support and parenting time
A judge will not deny or restrict parenting time because a
parent doesn’t pay child support
Likewise, a parent can be ordered to pay child support
even if the parent doesn’t have any parenting time or
contact with the child
Filing a court case
You are not required to have a lawyer
Filing fee for most Lake County family law cases is
$273.00
No filing fee if the parents have signed a VAP and are filing to
set up child support by agreement
If you don’t have enough money to pay the court fees, you
can ask the court to let you file for free
Application for Waiver of Court Fees
Notice and deadlines
There are rules you must follow to notify the other
parent of your court case
If the other parent files a case against you, there are
deadlines for you to respond
This presentation does not cover those topics
You should talk to a lawyer about the rules and deadlines that
apply in your case
How do I get a court order in IL?
File a petition telling the court what you want and why
For example, file a Petition to Establish Child Support if you want child support
If the case involves decision-making for a child or parenting time, you must file in the county where the child lives; otherwise, file in the county where either mom or dad lives
An IL court can usually decide parentage or child support only if the other parent has some connections to IL
An IL court can usually decide issues involving care or decision-making for a child only if the child has lived in IL for at least 6 months (or since birth if the child is under 6 months)
Other court requirements
A court approved parenting class is required in allocation
of parental responsibilities cases
The judge may require you to go to mediation if you can’t
agree on decision-making or parenting time
Public benefits
Changes in household size, income, and expenses can
impact eligibility for public benefits like SSI, TANF, food
stamps, Medicaid, and public housing
Report all changes immediately!
I still need help!
CSE: 1-800-447-4278 or 227A N. Genesee St., Waukegan,
IL 60085: http://www.childsupportillinois.com/
www.illinoislegalaid.org
Legal information and court forms
Lake County court forms:
http://www.lakecountycircuitclerk.org/court-forms
Statewide court forms:
http://www.illinoiscourts.gov/Forms/approved/default.asp
I still need help!
Prairie State Legal Services
Apply by phone: 800-531-7057
Apply online: www.pslegal.org
Help with parentage, allocation of parental responsibility, and
support is usually limited to telephone advice
Illinois State Bar Association Lawyer Referral
30 minute consultation for $25 or less
1-800-922-8757
http://ilf.isba.org/search.html